The Constitutional Con

Proponents of the “nuclear option” to break Senate rules and eliminate the filibuster on judicial nominations continue to repeat the false argument that the Constitution requires an up-or-down vote in the full Senate on every judicial nomination.

This argument is utterly refuted by more than 200 years of Senate history, during which literally thousands of judicial and executive branch nominees have been blocked in the Senate by filibusters, delays, and other tactics. The exact same advice and consent clause in the Constitution applies to both judicial and executive branch nominations.

A few additional points:

Nowhere in the text of the Constitution is there a requirement for a simple majority vote on nominations – or for a vote at all. What the Constitution does say expressly is that the Senate holds the sole power to make its rules (Article I, section 5).

Between 1968 and 2000, at least 34 nominations were filibustered on the Senate floor. Among these 34 were 13 judicial nominations, of which three people were nominated to be Justices of the U.S. Supreme Court and eight were individuals nominated to the federal circuit courts of appeals. Twenty-six of the 34 filibusters, approximately three-quarters, were led by Republican Senators. On three occasions, filibusters defeated nominations that had clear majority support for confirmation.

Going back as least as far as the administration of John Adams, America’s 2nd President, there have been repeated instances of the Senate failing to confirm nominations through inaction, delay, and other tactics that blocked a final up or down vote. Thousands of nominations over 200 years have been rejected in this fashion. This has also been true of nominations to the U.S. Supreme Court. Since 1789, there have been 24 nominations to the Supreme Court that the Senate did not confirm. Of those, 14 (nearly 60%) were defeated through inaction or delay and never received a final up or down vote.

No matter where one stands on the merits of any particular filibuster, it is simply not credible to claim that the Constitution requires a full Senate vote on every nominee.